Does open justice mean you should be allowed to boost your blog-site's profile by identifying a rape victim?

In a previous post on the pornographer Steve Crow, I had occasion to remark that "those who push the boundaries and advocate strongest for the freedoms we all enjoy often are not the sort of folks we'd like to pop by our house for a beer and a BBQ." As exhibit number two in support of this general claim, please step forward ... Mr Cameron Slater.

I've never met this fellow, who seems determined to brand his entire personality by the nom-de-web "Whaleoil" in a manner somewhat reminiscent of this clown. And given how Mr Slater chooses to present himself to the world, I really don't think I'd gain any pleasure from such a meeting. Nevertheless, his current quest for martyrdom on a charge of breaching name suppression orders* raises complex, important and quite urgent questions.

A few qualifications to that last sentence, before I come back to it. First of all, I'm highly suspicious of Mr Slater's claim that the deliberate flouting of court orders on his website was motivated by a deep commitment to the principles of "open justice" and in response to the public's burning desire to see a complete end to name suppression for accused persons. His delighted crowing about how many extra page hits (and attention from the "real" media) the issue has generated for him makes me think he's more interested in doing well than doing much good. However, the motive for his actions doesn't necessarily undermine the importance of the issue he illustrates.

Second, the particular examples Mr Slater has chosen to fight his battle on are not, on closer inspection, that pretty. Sure, the by-now infamous "prominent NZ entertainer" who obtained permanent name suppression following conviction for a late-night, drunken sexual assault represents a debatable judicial call. But the temporary (note that - temporary) suppression of the name of a "former-Olympian" until his trial on multiple charges of sexual violence against his wife was imposed to protect the identity of his victim. Parliament has determined that a suppression order in this situation is all but mandatory, precisely because publishing the identity of the alleged attacker would reveal to all the world that his wife (allegedly) has been raped.

(Actually, given Mr Slater's purported concern about the "rights and wrongs of crim­i­nals being able to hide their details when the vic­tims are often pub­licly named and their pic­tures shown for all the world to see", I'm a little surprised this aspect of the case seems to have passed him by. After all, he's been charged with a breach of s.139(1) of the Criminal Justice Act 1985 - breaching a non-publication order that protects the identity of a rape victim. Perhaps he ought to make that fact a little more prominent in his campaign, or perhaps the "real" media might like to question him on that matter?)

Which leads to a third point. Mr Slater's preferred solution to the problem of when it is legitimate to prevent the publication of an accused's name is to restrict such orders to "[cases] involving sex crimes against minors, so that the victims are not identified." Oh well, so much in that case for the poor wife of the ex-Olympian. Apparently "open justice" (and Mr Slater's attendant right to blog as he desires) means that we all get to revel in the knowledge that she (allegedly) is a rape survivor. Such are the costs of true principle fearlessly applied.

As you may guess, I actually don't have much time for Mr Slater and his self-pronounced jihad. I strongly suspect he'll end up with a conviction, despite his cute attempts to side-step the law. (Seriously - thinking the use of pictures rather than words would make the whole thing OK? Do the fairies also leave you alone if you say the magic rhyme just right?) And it isn't even that important if he does somehow skip by on a technicality - although, isn't it amazing how "Flea lawyers" and legal loopholes suddenly are OK when they are on your side?

What is complex, important and quite urgent is the balancing required in any situation of name suppression between a wide variety of important principles. Yes, freedom of expression is one such principle. That freedom helps to advance the important institutional value of open justice seen to be fair and impartially applied. But it also comes up against interests in privacy (for both the accused, who may not be guilty of anything, and the victim). As well as concerns about the ability of providing fair and impartial trials by jury in an atmosphere of media frenzy. These are tough issues, and anyone who thinks there is an easy answer to them is (by definition) simple minded.

Fortunately, such problems don't have to be answered by people like Mr Slater (or for that matter, me) simply typing our ill-considered spleen into cyberspace. Some serious and sensible people have been thinking about it. In fact, in a rather nice coincidence of timing, the Law Commission reported its recommendations on reforming the law on name suppression to Parliament just two days before Mr Slater had his date with destiny (you can download a copy of the report from here.)

From the summary of that report, the Commission recommends that:

The courts should have the power to make an order prohibiting publication of the name, address, or occupation of a person accused or convicted of an offence, or any particulars likely to lead to that person’s identification, on any of the following grounds: (a) where there is a real risk of prejudice to a fair trial; (b) to prevent undue hardship to victims; (c) to prevent extreme hardship to the accused and/or persons connected with the accused; (d) where publication would endanger the safety of any person; (e) where publication would identify another person whose name is suppressed by order or by law; (f) where publication is likely to prejudice the interests of the maintenance of the law, including the prevention, investigation and detection of offences; (g) where publication would cast suspicion on other people that may result in undue hardship.

That's the Law Commission's view, anyway. Now it is in the hands of Parliament (or, really, the Government) to decide what to do next. Which is to be far, far prefered to leaving it to the "blogosphere" to sort out.

* Note for pedants: there is no such thing as a "name suppression order". Rather, under the Criminal Justice Act 1985 the courts may (and as noted, in cases of sexual offending virtually must) make orders prohibiting the publication of various details relating to a case before it, a power that also covers the name of the accused. Such non-publication orders (whether temporary or permanent) are colloquially termed "name supression" - I've adopted the common parlance here.

Comments (9)

Fairies and magic rhymes – classic. And talking about "clowns", who knew there was a global streaker circuit? The things I learn from a Geddis post!

But Andrew you've nailed the crucial point, which is that the former-Olympian case is close to the worst possible case to campaign on. Surely even those who want less name suppression agree that properly protecting the victim is more important than properly punishing the accused (especially while they're still only accused). When the Herald campaigned on this back around 2000, the case it chose of the American millionaire arrested trying to enter the country carrying drugs (if I remember the case correctly) ticked all the right boxes.

A couple of questions:

What about the suggestion that everyone gets name suppression whilst accused to protect their reputations and it then it becomes next-to impossible to get suppression if they're found guilty?

The rule of thumb in the media re name suppressions was always that you couldn't say anything that narrowed the field of possible perpertrators down to 12 or fewer; ie you could say 'comedian' because there are (just) more than 12 comedians in this country. It's been some years since I did any court reporting, so does that still apply or are court orders more explicit?

Not sure about the "blanket suppression while just accused" rule. For one thing, I think it is important that the courts remain open to scrutiny and reportage in the day-to-day administration of justice. For another, just because a person is found not guilty of a crime doesn't mean that there is no public interest in finding out about their behaviour. Case in point - Clint Rickards.

The "next-to impossible" test for final name suppression is OK by me where the only competing interest is the reputation of the guilty party. But sometimes there are other interests that enter the picture - hence the Law Commission's multi-factorial test.

I'm not sure about the current rule of thumb on reporting details that may identify a person who has name suppression. Anyone else out there (Graeme Edgeler/Steven Price) got a clue?

The thing I'd want to add to your presumptions of name suppresion would be - at the victim's request. Name suppression for the perpetrator to protect the victim had better be to serve the victim.

As you say, Whaleoil seems to have struck a vein of popular dissatisfaction with the frequency of suppression orders. Although many ad hominem attacks fit him like a glove, and although this particular case is no poster child for ending name suppression, the frequency and ease with which name suppression orders are granted these days is a public disservice on a par with press inability to describe a corpse with knife wounds as anything more than an 'alleged' stabbing victim - which is weak and inaccurate.

Am I right in understanding there is no such thing as name suppression in the US? Might not be a bad idea.

I'm not so sure what is so bad about being known by a few as a rape victim. I know a number of rape victims and for me and my friends there is no stigma attached.

Of one thing I am sure. Name suppression has become the norm rather than the exception and that is no good thing. It seems to me wealthy or prominent people are likelt to be granted this privilege whist Joe Nurk the shit kicker from the other side of the tracks seldom does. For the wealthy and prominent, the threat of exposure might well cause them to hesitate at the last momnet before committing some damn fool offence.

While it theoretically is possible for a judge in the USA to prohibit the media from publishing the name of an accused, its First Amendment right to free speech means that a high presumption of invalidity applies to such measures. In other words, such orders virtually are never made, or if they are, usually get overturned on appeal. But that said, we need to be careful about saying "if they do it in the US, we should do it here." Our culture (legal and general) is quite different, so some careful thought needs to be given as to whether a general rule against any suppression would work/be desirable for us.

As for the point "I'm not so sure what is so bad about being known by a few as a rape victim" - the problem is that it isn't just "a few", or close friends, we're taking about here. It's everyone in New Zealand. Some people understandably may have a problem with that. Of course, if they don't, they can tell the judge that they don't want the accused's name to be suppressed, and the judge does not have to do so in such cases.

Finally, I don't know if name suppression has become "the norm rather than the exception" (outside of those cases where is virtually mandatory - sexual offending where naming the accused would identify the victim). I just haven't seen any statistics on this. Further, we need to distinguish between temporary name suppression, which is given far, far more frequently than permanent suppression. But all that said, the Law Commission actually agrees with you that the perception that name suppression is too easily obtained requires remedying ... hence its report and recommendations

If they were simply reporting the issue, you’d think that they may have mentioned that the Law Commission found that suppression orders are imposed in about 1 percent of criminal cases. And that not all of them involve suppresson of names (sometimes, it’s just evidence that’s suppressed). And that it includes suppressions imposed automatically to protect sex victims and child witnesses. And that it includes interim orders that lapse by trial time. (In fact, that’s probably the vast bulk of them - ie they’re not permanent suppression orders. Only about 700 a year are permanent).

Thank you for your considered reply, Andrew. The only thing about which I would take issue is your comment " It's everyone in New Zealand."

Reality is that while technically you are right, in reality very few people take any notice of these things and after as short a time as a year, I doubt anyone other than maybe twenty people would associate a person's name with a rape case which is rapidly disappearing into history. So you see, I Think this thing might be a little bit over-hyped

I suggest to you that The Herald is playing fast and loose just now with the case of the alleged Nelson child molester and in a far more cynical way that my friend Whaleoil might have done. I'm aware who the alleged offender is and I suggest to have described him as a "national figure" is stretching credibility to the limit. .This play on words led me imediately to assume he has a cennection with the National Party. If that turns out to be the case then I'd suggest the paper's editor should be prosecuted much more aggressively than a tin pot blogger.

Is there some technical error to explain why there is no comment facility with your diatribe part 2?

Mr Slater is a strange and to most of us a rather unpleasant person,with political and social views I can rarely support, but to suggest his blog topics are tinged with such motives as self promotion, sit rather badly in a blog which has in recent weeks borrowed the notoriety of Hone Harawira, the suppressed entertainer story and two shots at Whaleoil.

For a chap who thinks these things should be left to judicial process, there has been a fairly constant assumption that they are of public interest and worth another round on this site.

I think the notion that victims should be "protected" by automatic suppression of offenders' identities is just continuing the notion that victims of such offences have reasons for shame.

I think people out on bail pending trial should not be granted name suppression.

There is plenty of evidence that those expecting to be deprived of their freedom and publicly exposed often use this "borrowed time" to offend more recklessly, and it s appropriate that the community has at least some warning of the situation.

"I'm not so sure what is so bad about being known by a few as a rape victim. I know a number of rape victims and for me and my friends there is no stigma attached."

"I think the notion that victims should be "protected" by automatic suppression of offenders' identities is just continuing the notion that victims of such offences have reasons for shame."

Interesting that those notions come from a male perspective.

I suspect that women - who are more likely to be victims of rape than men - would have different feelings on the subject.

"Name suppression has become the norm rather than the exception and that is no good thing. "

Not only is there no evidence of that, but I suspect that any such perception is simply a result of the choices made by media when reporting crime stories. If media choose to report five sensational crime stories within a 24 hour period; all of which involve 'name suppression' - rather than reporting five lesser-sensational stories which do not involve 'name suppression' - then the perception is skewed toward the former.